Posts

Dismissal leads to €4,000 award for misbehaving employee

Tesco ordered to pay €4,000 to employee who took wine without paying

The Labour Court recently upheld a Workplace Relations Commission decision to award a Tesco employee €4,000 despite the fact that she had breached company policy. The decision again highlights the importance of adhering to fair procedures and the principles of natural justice in a disciplinary procedure.

The facts

On 13th January 2016, the employee was found leaving the store with a bottle of wine worth less than twenty euro that she had not paid for. The employee said that she forgot to pay for it as she was distracted by a conversation with a colleague about a bereavement.

Disciplinary procedure

Following a full disciplinary process, which commenced with an investigation on 19th January, 2016 the employee was dismissed on 21st March, 2016 on the basis that the bond of trust had been broken and that she had breached the Tesco Honesty Policy and Staff Purchases Policy. An appeal hearing was held on 13th May, 2016 and the appeal officer upheld the sanction, which was communicated to the employee, on 25th May, 2016. All meetings were conducted by internal management.

Flaws in procedure

No. 1 – no evidence provided to employee in advance of investigation meeting

The employee was not provided with the information to be discussed prior to the investigation meeting. At the end of the investigation meeting, the employee was handed a pre-prepared letter stating that she would be subject to the disciplinary procedure. Representations made on her behalf stated that the outcome of the investigation meeting was predetermined prior to hearing the employee’s responses in relation to the allegations.

No. 2 – employee not provided with policy or procedure documents

Neither the disciplinary procedure nor the company policies relating to the issues of concern were provided to the employee during the investigation or disciplinary processes. The investigator stated that, having reviewed all of the facts, he came to the conclusion that the allegations against the employee, amounted to a breach of Tesco’s honesty policy.

No. 3 – confusion over what policies had been breached

The employee throughout the processes stated that she did not have a copy of the policy that she was alleged to have breached. The company disciplinary officer could not tell the Labour Court what aspect of the staff purchase policy had been breached by the employee and the appeal officer was not aware that the decision to dismiss was based on two policies.

Fair procedures not complied with

The Labour Court found that the employee was not supplied with the relevant documentation prior to the investigation meeting and that the investigation outcome was drawn up prior to hearing her responses to the allegations. The employee was not thereby given a right to respond and to have any responses adequately considered.

In addition, the Labour Court found that the employee was not supplied with the relevant policies and that it was unclear what policy had been breached or how she had done so. It was also noted that neither the disciplinary officer or the appeals officer were clear on the question of what policies had been breached. Ultimately, these procedural flaws led the Labour Court to form the conclusion that the decision to dismiss the employee was unfair.

Employee contribution to her own dismissal

Despite this, the Labour Court found that the employee contributed substantially to her own dismissal through the act of not paying for the wine. The employee’s role in her own dismissal was taken into account in fixing the amount of compensation. The Labour Court affirmed the Workplace Relations Commission award of €4,000.00.

Vital to translate policy into practice

This case demonstrates that even where disciplinary processes appear to be robust, failing to adhere to the principles of natural justice and the terms of a company disciplinary policy will increase the risk of carrying out an unfair dismissal. Even if it is clear that the employee has been guilty of wrongdoing, the employee is still entitled to receive a fair hearing. It is important that anyone who is responsible for managing any aspect of the disciplinary procedure is trained to do so or that external expertise is enlisted to ensure that all aspects of the process are undertaken fairly.